New York Zoning and Municipal Law Blog
The Appellate Division restated the requirement that all interested parties must be named in an action challenging a site plan approval and that a property owner and prospective developer are not necessarily united in interest. In Matter of Mensch v Planning Bd. of the Vil. of Warwick, the Court found that the failure of the Petitioner/Plaintiffs (“Petitioners”) to name the owners in the original Petition/Complaint was not cured by the filing of an amended pleading, subsequent to the passage of the thirty day statute of limitations.
The developer, 116 Elm Street Realty LLC (“the Developer”), sought permission to develop a parcel owned by Frank D. Petrucci, Lynn Crane, and Glenn Petrucci (“the Owners”). The Village Planning Board conducted a SEQRA review and issued a negative declaration. Thereafter, the Planning Board granted site plan approval to the Developer, permitting construction of a restaurant/catering facility on the property at issue. The Petitioners, who own property that borders the site in question, then brought this hybrid Article 78/Declaratory Judgment Action, challenging the actions of the Planning Board, seeking a determination from the Building Inspector that the approval was for a use not permitted in the Zoning Code and a declaration that the use was not permitted. Initially, Petitioners failed to name the Owners of the property. When Petitioners filed an amended Petition/Complaint, it was filed and served subsequent to the expiration of the statute of limitations. The lower court dismissed the case.
In upholding the lower court decision, the Appellate Division held:
“Here, the fourth cause of action alleges that the Village Code of the Village of Warwick (hereinafter the Village Code) required the Building Inspector to issue a formal determination of the allegations contained in an August 2017 letter the petitioners/plaintiffs’ counsel sent to the Building Inspector which, in effect, sought an advisory opinion regarding the compliance of the proposed project with the Zoning Code. Despite the petitioners/plaintiffs’ assertion to the contrary, the plain language of the Village Code did not impose a duty upon the Building Inspector to issue a formal determination in response to their counsel’s letter (see Village Code § 145-149.4).
With respect to the first three causes of action, which seek review of the Planning Board’s approval of the site plan and the negative declaration, the petitioners/plaintiffs argue that the relation-back doctrine applies here such that the otherwise late joinder of the owners was timely.
The relation-back doctrine “allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are ‘united in interest'” (Buran v Coupal, 87 NY2d 173, 177, quoting CPLR 203[b]). “In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well” (Mileski v MSC Indus. Direct Co., Inc., 138 AD3d 797, 799-300; see Buran v Coupal, 87 NY2d at 178).
Here, although the causes of action all arose out of the same conduct, the petitioners/plaintiffs failed to show that the owners are united in interest with the developer, as required by the second prong of the relation-back doctrine. Moreover, the petitioners/plaintiffs “failed to demonstrate a mistake as to the identity of the proper party or parties at the time of the original pleading,” which is necessary to the application of the relation-back doctrine (Matter of Ferruggia v Zoning Bd. of Appeals of the Town of Warwick, 5 AD3d at 683).”